Do I have to do Roadside Field Sobriety Tests?

The answer varies from state-to-state, but in Arizona, the answer could be “yes” or “no” and you’ll have to decide which is right for you. In order to understand this, we need to explore what Field Sobriety Tests are and why the police use them.

Field Sobriety Tests or “FSTs” are a series of roadside coordination tests. In the late ‘70s and early ‘80s, they were tested for efficacy and three were “validated” (that means they correlate to a particular blood alcohol concentration–it does not mean they are “valid”). The three tests are the Horizontal Gaze Nystagmus (HGN), Walk-and-Turn (WAT), and the One-Leg-Stand (OLS).

The HGN is a test where an officer waves a pen or finger back and forth in front of your eyes. You watch the object travel back and forth and if the officer sees a jerkiness (nystagmus) to the movement at specific instances, the officer records this a “cue” or “clue.” The officer is looking for the cues at three different instances in each eye, which gives a total of six cues. The test is not reproducible. There are many innocent reasons for nystagmus. And it is totally subjective.

The WAT consists of a person walking nine steps heel-to-toe down a straight line, turning as indicated and walking back nine steps. Make two or more mistakes that the officer is looking for, and you have failed. The test is designed to make people fail. One could do more than 98% of the test properly and still fail. Officers often “double-dip” on cues. In other words, if a person steps off of the line once, that person would also miss touching heel-to-toe. That’s one mistake, but two cues and a failure.

The OLS consists of a person standing on one leg, and counting to thirty. If the person does two or more of the following four things: sways, hops, puts foot down, uses arms for balance, the person fails. Thinking that you can get a person out of a car, after midnight, know nothing about her medical conditions and have this test be valid for anything is ridiculous.

Let’s look at the sole reason why the answer is “yes.”

The Arizona Supreme Court has said that Field Sobriety Testing is not optional. The Supreme Court has deemed it to be a “reasonable”search. The 4th Amendment to the United States Constitution only protects people against “unreasonable” searches. So, with a blanket decision that covers every situation, the Arizona Supreme Court has determined that if the police have enough reason to detain a driver, the driver must submit to the roadside testing procedure.

What does this mean to the driver at the side of the road who has to decide whether to submit to the unfair and skewed testing? It means that if the driver declines to take the tests, the police can take that as a sign of guilt and use it when deciding if there is enough probable cause to arrest. It also means that a prosecutor can argue that the driver–now defendant–refused to take the tests because she knew she was guilty and would fail the tests. This does not mean that a defendant may not fight that allegation, however. There are certainly many innocent reasons for declining to take the roadside tests.

Now, let’s look at why the answer is “no.”

There is no criminal or civil penalty for declining to take the tests. The police cannot take your license away and they cannot charge you with a crime of “refusing” to take the Field Sobriety Tests. That simply is not a crime.

The police cannot physically force someone to walk on a straight line, stand on one leg, or do any of the other roadside coordination exercises. Testing requires a great degree of cooperation from the subject.

Moreover, when someone with a disability is stopped–say for example a returning veteran who lost a leg in Afghanistan–it would be wholly unfair to allow the Court to criminalize that person’s inability to walk heel-to-toe down a straight line.

Finally, while someone can fail a FST, one cannot pass. Even where a person exactly performs every portion of a FST, the result is “inconclusive.” If a person does not take the FSTs, the result is also “inconclusive.” So, the smart thing to do is to start out with the best possible result–inconclusive–and remain there. Declining to take the tests has the same result the same as passing and is the smart thing to do.

About James Nesci

James Nesci often defends cases well into the .30 blood-alcohol range. He has caught more than one police officer lying during cross-examination and some police officers have even refused to grant pretrial interviews to him without a prosecutor or their own counsel present. He was one of the lead attorneys on the Intoximeters® RBT-IV breath-testing issue in Southern Arizona which resulted in the suppression of breath tests in over 7,000 cases and the removal of the RBT-IV from the streets of Arizona. He also spear-headed the effort to obtain the manufacturer’s source code and software for the CMI Intoxilyzer 8000. Although the source code was never obtained, he almost single-handedly ground 90% of all DUI prosecutions within the City of Tucson to a halt for nearly three years and obtained breath test suppressions and dismissals in hundreds of DUI cases.
In addition to “traditional” DUI cases which involve alcohol, Mr. Nesci is a recognized expert on the defense of DUI/Drugs cases. Whether they be legal-over-the-counter-medications, prescription medications or illicit drugs, such DUI cases are far more complex and present cutting-edge issues for the courts. He is qualified to administer Standardized Field Sobriety Tests under National Highway Traffic Safety Administration & International Association of Chiefs of Police Guidelines.
In 2006, he was appointed Regent of the National College for DUI Defense, Inc. He was formerly the chair of the Curriculum Committee for the NCDD. Currently, he is the State Delegate Coordinator, a member of the Amicus Committee, Treasurer of the NCDD, Member of the Executive Committee and served as an oral argument judge for the Board Certification Committee.
Mr. Nesci is the author of Arizona DUI Defense: The Law & Practice, a legal treatise written for DUI defense attorneys and published by Lawyers and Judges Publishing Company (now in its third edition) [www.lawyersandjudges.com].
In 1999 Mr. Nesci became a Sustaining Member of the National College for DUI Defense [www.NCDD.com]. In 2001, he was Board Certified by the National College for DUI Defense, Inc., which is a is recognized by the American Bar Association. He is one of only three Board Certified attorneys in the State of Arizona, and one of less than fifty Board Certified attorneys in the nation (as of January, 2012).
Mr. Nesci has lectured from coast-to-coast for such organizations as The University of Arizona James E. Rogers College of Law, Arizona State University College of Law Alumni Association, University of Mississippi CLE Department, South Texas College of Law CLE Department, Arkansas Association of Criminal Defense Lawyers, Arizona Attorneys for Criminal Justice, Arizona Public Defenders Association, California Attorneys for Criminal Justice, City of Phoenix Public Defender's Office, Colorado Criminal Defense Bar, Florida Association of Criminal Defense Lawyers, Indiana Public Defender’s Council, Kansas Association of Criminal Defense Lawyers, Louisiana Association of Criminal Defense Lawyers, Maricopa County Bar Association, Maricopa County Public Defender's Office, Maryland Criminal Defense Attorneys Association, the Mexican-American Bar Association at Loyola, the National Association of Criminal Defense Lawyers, the National College for DUI Defense, the Nebraska Criminal Defense Attorney’s Association, the Nevada State Bar Association, the New York State Bar Association, the Ohio Association of Criminal Defense Lawyers, the Pima County Bar Association, the Pima County Bar Association Young Lawyer’s Division, the Texas Criminal Defense Lawyers Association, the Tucson City Public Defender’s Office, the Tulare County (California) Public Defender’s Association, the Utah Criminal Defense Lawyers Association, and the Washington Foundation for Criminal Justice.
He has taught seminars on the subjects of Ethics, 4th Amendment Law, Drug Recognition Evaluations (DUI-Drugs/DRE), Cross-Examination, Trial Tactics, Jury Selection, Field Sobriety Testing, Driving Behavior, Blood Alcohol Calculations, Opening & Closing Arguments, Source Code Litigation, Frye & Daubert Challenges, Intoxilyzer 8000 Operator’s Course, Headspace Gas Chromatography, Blood and Breath Testing.
He has represented former Supremes lead singer Diana Ross and Tampa Bay Buccaneers' Tight-End Jerramy Stevens on Extreme DUI charges and fitness guru Richard Simmons on an assault charge.
Mr. Nesci lives in Tucson with his wife and twin daughters. He is an honorably discharged veteran of the U.S. Navy where he spent much of his time working as an electrician in the Philadelphia Naval Shipyards. His interests are traveling, fine wines, vintage port and fast cars. He is an amateur race car driver, an accomplished mechanic, and a Corvette fanatic.